(a) Expanded Discovery Policy.
(1) At arraignment, the government must state on the record to the
presiding judge whether it is following its Expanded Discovery Policy as
defined in Criminal L. R. 16(a)(2). If the government states that it is following
the Expanded Discovery Policy and the defense accepts such discovery
materials, then the defense’s discovery obligations under Fed. R. Crim. P. 16(b)
arise without further government motion or request and both parties must be
treated for all purposes in the trial court and on appeal as if each had filed
timely written motions requesting all materials required to be produced under
Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), (E), (F), and (G), and 16(b)(1)(A), (B),
and (C), and invoking Fed. R. Crim. P. 16(c). If the government is following the
Expanded Discovery Policy, the government need not respond to and the Court
must not hear any motion for discovery under Fed. R. Crim. P. 16(a) or 16(b)
unless the motion complies with subsection (b) of this rule.
(2) As defined by the United States Attorney’s Office, the “Expanded
Discovery Policy” means disclosure without defense motion of all information
and materials listed in Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), and (F); upon
defense request, material listed in Fed. R. Crim. P. 16(a)(1)(E); material
disclosable under 18 U.S.C. § 3500, other than grand jury transcripts; reports
of interviews with witnesses the government intends to call in its case-in-chief
relating to the subject matter of the testimony of the witness; relevant
substantive investigative reports; and all exculpatory material. The
government retains the authority to redact from open file material anything (i)
that is not exculpatory and (ii) that the government reasonably believes is not
relevant to the prosecution, or would jeopardize the safety of a person other
than the defendant, or would jeopardize an ongoing criminal investigation. The
defense retains the right to challenge such redactions by motion to the Court.
(3) Unless these items contain exculpatory material, “expanded
discovery materials” do not ordinarily include material under Fed. R. Crim. P.
16(a)(1)(G), government attorney work product and opinions, materials subject
to a claim of privilege, material identifying confidential informants, any
Special Agent’s Report (SAR) or similar investigative summary, reports of
interviews with witnesses who will not be called in the government’s case-in-
chief, rebuttal evidence, documents and tangible objects that will not be
introduced in the government’s case-in-chief, rough notes used to construct
formal written reports, and transcripts of the grand jury testimony of
witnesses who will be called in the government’s case-in-chief.
(4) Unless otherwise ordered by the Court, when the government is
following the Expanded Discovery Policy under Criminal L. R. 16(a)(1) and
16(a)(2), materials described in Fed. R. Crim. P. 16(a)(1)(G) must be disclosed
to the defense not later than 15 days before the commencement of the trial,
unless the government shows good cause for later disclosure. Grand jury
transcripts of any and all witnesses the government intends to call at trial will
be made available to the defense no later than 1 business day before the
commencement of the trial. The defense must disclose materials described in
Fed. R. Crim. P. 16(b)(1)(C) as soon as reasonably practicable after the
government’s disclosure under Fed. R. Crim. P. 16(a)(1)(G), and in any event
not later than 5 business days before trial, unless the defense shows good cause
for later disclosure.
(5) If the government is following the Expanded Discovery Policy, the
defense must disclose materials described in Fed. R. Crim. P. 16(b)(1)(A) and
(B) as soon as reasonably practicable, and in any event not later than 15 days
before commencement of the trial, unless the defense shows good cause for
later disclosure.
(6) If the government elects not to follow the Expanded Discovery Policy
described in Criminal L. R. 16(a)(2), discovery must proceed pursuant to Fed.
R. Crim. P. 16 and Criminal L. R. 12(a)(3).
(b) Motions to Compel Discovery or Inspection. All motions to compel
discovery or disclosure must be accompanied by a written statement by the movant
that, after the movant has in good faith conferred or attempted to confer with the
party failing to make disclosure or discovery in an effort to obtain it without court
action, the parties are unable to reach an accord. The statement must recite the date
and time of the conference or conferences and the names of all parties participating
in the conference or conferences.
Committee Comment: The “Expanded Discovery Policy” set forth in this rule had been
known as the “Open File Policy.” In 2010, after defense counsel in other districts
alleged that the term “open file” was misleading because the government was not
providing access to its actual “file,” the Department of Justice directed all federal
prosecutors to avoid using the term. The change to “Expanded Discovery Policy” simply
reflects the fact that the United States Attorney’s Office no longer refers to its policy as
an “open file.” Despite the change in name, the policy embodied in this rule remains
unchanged.
